Date: 20011122
Docket: A-269-01
Neutral citation: 2001 FCA 360
CORAM: STONE J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
OLYMPIA INTERIORS LTD. ET AL
Appellants
- and -
HER MAJESTY THE QUEEN ET AL.
Respondents
Heard at Toronto, Ontario, on November 22, 2001
Judgment delivered at Toronto, Ontario, on November 22, 2001.
REASONS FOR JUDGMENT OF THE COURT: MALONE J.A.
Date: 20011122
Docket: A-269-01
Neutral citation: 2001 FCA 360
CORAM: STONE J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
OLYMPIA INTERIORS LTD. ET AL.
Appellants
-and-
HER MAJESTY THE QUEEN ET AL.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto,
Ontario on November 22, 2001)
MALONE J.A.
[1] This is an appeal from an order of the Honourable Madame Justice Tremblay-Lamer dated April 25, 2001. By that order the appellants' motion for an extension of time dated March 9, 2001 was dismissed with costs on the basis that a) the appellants had failed to explain why the appeal could not have been brought within the statutory time limit; b) that the Court was not satisfied that there was an arguable case, and c) the matter was clearly an abuse of process.
[2] The judgment sought to be attacked is that of MacKay J. dated May 1, 1998. An appeal therefrom not having been launched within the statutory time limit, the appellants sought an extension of time in the Trial Division. In paragraph 11 of his reasons for refusing joinder Mackay J. noted: "...there are no issues on Court files GST-41-92 and ITA-8447-92, relative to the validity of the certificate in each of those files, and thus no issues to be joined with those in the action by the plaintiffs in Court file T-1436-92".
[3] This intended appeal involves certificate # ITA 8447-92 (the "Contested Certificate") registered against the appellants by the Minister of National Revenue on November 4, 1992. The grounds of appeal are far from precise, but the appellants essentially ask this Court to declare that the Contested Certificate is unconstitutional, because both during search and seizure and criminal proceedings against the appellants the conduct of Crown servants violated the appellants' rights guaranteed by sections 7, 8, 11, 12, and 15 of the Charter.
[4] In order to set aside the order now under appeal, this Court must be satisfied that the learned Motions Judge failed to give sufficient weight to all relevant considerations (Reza v. Canada, [1994] 2 S.C.R. 394.)
[5] Subsection 165(1) of the Income Tax Act requires a taxpayer to challenge the Minister's assessment within ninety days after the mailing of the notice of assessment. According to the record here, the first steps taken to challenge either the assessment, or the validity of the Contested Certificate were in August of 1995, long after the ninety day limitation period fixed by statute had expired. There is no material on the record that demonstrates that the appellants ever filed a notice of objection to the assessment upon which the Contested Certificate was based or the reason for their failure to do so. In our opinion, the issue as to the validity of the Contested Certificate is, first of all, time-barred by subsection 165(1) of the Income Tax Act. However, this appeal does not end there.
[6] On March 31, 1999, after a trial lasting sixteen days, MacKay J. dismissed the action brought by the appellants against Her Majesty the Queen. Specific findings made in the detailed and carefully considered reasons for judgment of Justice MacKay included the following:
i) The evidence established that there was reasonable and probable cause for the Crown to commence the prosecution against the appellants and there was evidence supporting the prosecutor's assessment that the prosecution would probably succeed;
ii) there was simply no evidence of maliciousness on the part of any Crown servant;
iii) there was no abuse of process and no evidence upon which to base any finding of malice or improper purpose;
iv) the evidence did not support a claim for abuse of authority;
v) there was no negligence shown by any of the Crown's servants;
vi) there was no evidence of any agreement between two or more public servants;
vii) there was no basis on which to find infringement of the rights of the appellants protected by sections 7, 8, 11, 12, or 15 of the Charter.
[7] On September 13, 1999, this Court dismissed with costs the appeal from the judgment of MacKay J. and on January 20, 2000, the Supreme Court of Canada dismissed with costs the application for leave to appeal from the decision of this Court. On June 22, 2000, an application for reconsideration was dismissed by the Supreme Court of Canada with costs.
[8] In our analysis, the Charter related issues raised on this appeal are also res judicata; the same issues and parties having already been dealt with by MacKay J. whose judgment stands as a final order.
[9] Moreover, it is to be remembered that the refusal of the requested extension of time was a matter falling squarely within the learned Motions Judge's discretion. We are not persuaded that a reviewable error was committed in the exercise of that discretion.
[10] The appeal will be dismissed with costs.
"B. Malone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-269-01
STYLE OF CAUSE: OLYMPIA INTERIORS LTD. ET AL
Appellants
- and -
HER MAJESTY THE QUEEN ET AL.
Respondents
DATE OF HEARING: THURSDAY, NOVEMBER 22, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: MALONE J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY, NOVEMBER 22, 2001.
APPEARANCES BY: Mrs. Mary David
For the Appellant, on her own behalf
Mr. Brian McPhadden
For the Respondent
SOLICITORS OF RECORD: Mrs. Mary David
451 West Street North, Unit #5
Orillia, Ontario
L3V 5E9
For the Appellant, on her own behalf
Page: 2
McPhadden, Samac Merner, Darling
Barristers & Solicitors
Suite 811
44 Victoria Street
Toronto, Ontario
M5C 1Z5
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20011122
Docket: A-269-01
BETWEEN:
OLYMPIA INTERIORS LTD. ET AL
Appellants
- and -
HER MAJESTY THE QUEEN ET AL.
Respondents
REASONS FOR JUDGMENT
OF THE COURT
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